Delhi District Court
The Case Of The Prosecution In Brief Is ... vs . on 31 May, 2012
IN THE COURT OF SH. RAKESH TEWARI ASJVI(OUTER),
ROHINI COURTS, DELHI
SC NO.133/10
FIR NO. 287/08
U/S 363/366/376 IPC
PS S.P. Badli
Unique Case ID No. :02404R0276562009
State
Vs.
Maninder @ Monu s/o Ramdhari
r/o Village and PO Pehrawar, District Rohtak,
PS Sadar, Haryana.
Date when committed to the court of Sessions :16.09.2009
Date when case reserved for judgment : 21.05.2012
Judgment pronounced on : 31.05.2012
JUDGMENT:
1. The case of the prosecution in brief is that on 06.07.2008, vide DD No.20B, one Satbir Singh (identity withheld for secrecy reason) came to the PS and got recorded a missing report of his daughter, the prosecutrix, aged about 16 years but he did not cast any suspicion on any person at that time and that on 10.07.2008, wife of said Satbir Singh came to the PS and got recorded her statement. SC No.133/10 Page 1/15
2. As per statement of the said lady, she was a labour and that on 03.07.2008, her daughter, the prosecutrix (name withheld for secrecy reasons) aged about 16 years had gone at 8 a.m for her school at Samay Pur in the school uniform, but did not come back to the house and she had searched for her (the prosecutrix) but could not trace out the prosecutrix and she came to know that in the adjoining house to her rented house, the brother in law of one Hari Om namely accused Maninder Sharma, who had come to her said brother in law Hari Om for last about 20/25 days, was also missing from the said day when the prosecutrix was found missing and she is certain that the prosecutrix had been kidnapped by said Maninder and on this statement, the FIR was got registered and the investigation was entrusted to ASI Sugan Lal.
3. During investigation, on 11.07.2008, the said ASI Sugan Lal had come to Delhi from outside and the said DD with regard to missing of the said prosecutrix, was previously entrusted to HC Suresh Dahiya, was thereafter entrusted to the said IO and on 12.07.2008, said Hari Om Sharma informed that from Harmilap Hospital, Haridwar, he had received a phone call that the prosecutrix and the said boy Maninder Sharma were admitted to the said hospital and on this information, the said IO along with police staff reached PS Kotwali, Haridwar, where the police official namely Vivekanand of PS Haridwar met him and the said prosecutrix and SC No.133/10 Page 2/15 the boy Maninder were found admitted in the hospital stated to have consumed some poisonous substance and the said official of PS Haridwar had recorded their statements but no foul play was found and as such, no police action was taken and both the said persons were discharged from the hospital on 13.07.2008 and the said prosecutrix and the boy Maninder were brought to Delhi and thereafter accused Maninder was arrested and statement of the prosecutrix was recorded u/s 161 Cr.PC.
4. As per statement of the prosecutrix u/s 161 Cr.PC, she was aged about 15 years and 8½ months and one Hari Om was residing in her neighbourhood and his brother in law Maninder @ Monu used to come there who became acquainted with her and they used to talk at the roof of the said house whenever they got a chance and Maninder asked her to marry him to which she agreed and on 05.07.2008, at about 7.30 a.m, she had gone out of her house to the school and said Maninder met her at Sector 18, Rohini from where they went to Japani Park and in the evening they went to Jaipur and thereafter on 10.07.2008, at about 7.30 a.m, they came to Haridwar and took a Holy dip in the Ganges and went to the temple and they got married in the said temple of their own and thereafter they went to a hotel and took a room there and they remained in the hotel as husband and wife and on the night intervening between 10th and 11th July, 2008, they committed sexual intercourse and there they felt ill SC No.133/10 Page 3/15 due to which Manager of the hotel got them admitted in the hospital and police of Haridwar reached the hospital and subsequently they were discharged from the hospital.
5. In further investigation, both the accused and the prosecutrix were got medically examined and in the statement u/s 164 Cr.PC, the prosecutrix got recorded wherein she narrated that on 20.07.2008, she would be 18 years of age and that she had gone along with the accused Maninder of her own will and she did not want to go to her parental home as she would be killed and she wanted to remain with accused Maninder and said accused Maninder be set free from the jail and in further investigation, the exhibits were sent to the FSL and the charge sheet was filed against the accused.
6. On the basis of the said evidence and the charge sheet my Ld. Predecessor, vide his order dated 11.11.2009, framed charge against the accused u/s 366/376 IPC, to which he pleaded not guilty and claimed trial.
7. The prosecution, in order to prove its case, has produced as many as 17 witnesses, relevant of which have been discussed below.
8. The statement of the accused u/s 313 Cr.PC was recorded wherein he pleaded his innocence and denied the incriminating SC No.133/10 Page 4/15 evidence against him as false and did not prefer to lead any defence evidence.
9. I have heard Ld. APP for the state, Sh. Kundan Kumar, Advocate for the accused and perused the record.
10. PW2, the mother of the prosecutrix, proved the said facts regarding missing of the prosecutrix and going to Haridwar after coming to know that her daughter was admitted in hospital there and she further deposed that on inquiry from the prosecutrix, she told her that accused had taken away the prosecutrix on 05.07.2008 from Sector 18, Rohini, and from there he took her to Jaipur and thereafter to Balaji and Haridwar and that prosecutrix also told her that accused had married with her and had sexual intercourse with her. In her cross examination on behalf of the accused, she replied that she had six children and two daughters were elder to the prosecutrix and at the time of admission of the prosecutrix in the school, her age was mentioned as per rough idea. She admitted that the prosecutrix had told her that after she had gone with the accused, she remained with him as friend and did not get married with accused. On court question regarding her deposition in examination in chief and the said answer given in cross examination, she clarified that in examination in chief, she deposed the fact told to her by the IO of the case who was present outside the court room but her SC No.133/10 Page 5/15 daughter told her that accused did not marry with her or that she had not remained as husband and wife with accused.
11. PW3, father of the prosecutrix, proved the missing report vide DD no.20, which is Ex.PW3/A and he proved the original birth certificate of the prosecutrix as Ex.PW3/B and he further deposed that after about ten days of the missing of the prosecutrix, he received a call from PS S.P. Badli that her daughter, the prosecutrix, was admitted in a hospital at Haridwar and he along with his wife went to the said hospital at Haridwar and found her daughter and the accused admitted in the hospital and the accused was arrested vide memo Ex.PW3/C and disclosure statement of the accused is Ex.PW3/D. In his cross examination on behalf of the accused, he admitted that prosecutrix told him that she had not marry the accused. He denied the suggestion that he gave the age of the prosecutrix at the time of her admission in the school on approximation.
12. PW7 Sh. Satish Kumar was the Manager of Hotel Residency, Haridwar, who deposed that the prosecutrix and the accused introduced themselves as husband and wife and they took the room no.10 @ Rs.150/ per day in the said hotel and he made the entry in the Tourist Register at Sl.No.10111 and photocopy of the same is Ex.PW7/A. In his cross examination on behalf of the accused, he SC No.133/10 Page 6/15 replied that initially they told their relationship as fiancée (Mangetar) and thereafter she told herself as the wife and he volunteered that she was wearing a Mangalsutra as well as vermilion was filled up at her head as the sign of Hindu wife. He further replied that the prosecutrix did not make any complaint during her stay either to him or to the staff of the hotel.
13. PW12 Dr. Sanjay Kumar proved the MLC of the prosecutrix as Ex.PW12/A, who was admitted with the alleged history of sexual assault and thereafter she was referred to Gynae for internal examination and he further proved the MLC of accused as Ex.PW12/B and his capacity to perform sexual intercourse. PW14 Dr. Shyam Singh identified the handwriting and signatures of Dr. Shalini, who internally examined the prosecutrix as per MLC Ex.PW12/A. PW15 Ms. Rekha, the then Ld. MM proved the statement of the prosecutrix u/s 164 Cr.PC recorded by her as Ex.PW15/A.
14. PW16 Sh. K.D. Sharma, official of the office of Registrar of Births and Deaths, MCD, proved the date of birth certificate as Ex.PW16/A and the date of birth being 11.11.1992 vide registration no.1279 and he further proved the original birth certificate Ex.PW3/B on the judicial record.
15. PW17 SI Sugan Lal was the IO of the case who deposed SC No.133/10 Page 7/15 regarding the said investigation conducted by him and he tendered the FSL result as Ex.PX and Ex.PY. In his cross examination on behalf of the accused, he answered that prosecutrix disclosed him that she was induced by the accused and then only she went along with him to Haridwar.
16. Coming to the star witness, the prosecutrix, who appeared as PW1, who deposed that on 05.07.2008, she was residing at the house mentioned in the deposition along with her family and was studying in 10th class and her date of birth was 27.10.1992 and that accused Maninder present in court was known to her prior to 05.07.2008 and she became familiar with him and sometimes he used to talk to her and on 05.07.2008, accused Maninder called her at Sector 18, Rohini and she left the house at 7.30 a.m to go to school but she had not told this fact that accused had called her and she reached Sector 18, Rohini where accused met her and thereafter she along with accused went to Japani Park and started roaming there and thereafter accused took her to Jaipur in a bus at about 5 p.m on that day and accused tried to locate some place for keeping her but he could not find any place as the hotel owners asked from the accused and from her about the proof and their relation and that from Jaipur, accused took her to Balaji where they stayed in a Dharamshala and on the following day, he took her to Haridwar and kept her in a hotel for about two days and they remained there as friends and accused had SC No.133/10 Page 8/15 not done sexual intercourse with her and that accused purchased some tablets from a chemist shop at Haridwar which were consumed by both of them and that accused had not married with her during this period and that after consuming the said tablets, they both became unconscious and someone informed the local police and they were taken to hospital where they were medically examined and thereafter the police from Delhi reached there where accused was apprehended by the police and she was recovered from him and she was taken to BJRM hospital, where she was medically examined and that her statement was also recorded by the MM and she was cross examined on behalf of the State by the Ld. Addl. PP, wherein she denied to have made any statement Mark PW1/A to the police. In her cross examination on behalf of the accused, she admitted that she would complete her 18 years on 20.07.2008. She further admitted that she went with accused without any threat, inducement or promise. She admitted that she deposed about her date of birth in the court approximately as she was not sure about her actual date of birth and that only her parents could tell about her correct age.
17. Even if I take her to be below 16 years of age, but in view of the categorical deposition of the prosecutrix that no sexual intercourse was committed with her by the accused, the charge u/s 376 IPC completely fails.
SC No.133/10 Page 9/15
18. So far as the offence u/s 366 IPC is concerned, the prosecutrix was below 18 years of age as per the certificate of birth produced from MCD record by PW16 wherein her date of birth is mentioned as 11.11.1992, although the mother of the prosecutrix, the PW2, has categorically admitted that her date of birth given in the school record was as per rough idea. The mother, who could have been the best witness to the age of the prosecutrix, created a doubt towards the registration of said date of birth vide Ex.PW16/A and the birth certificate Ex.PW3/B. Even otherwise, the Hon'ble Supreme Court has held that in a country, it is not uncommon for parents sometime to change the age of their children in order to get some material benefit either for appearing in examination or for entering a particular service which would be denied to a child as under the original date of birth he would be either under aged or ineligible and that therefore, entry of date of birth in school leaving certificate or admission register is not a legal evidence of the age of the prosecutrix. The reference is of the case titled Umesh Chandra Vs. State of Rajasthan reported as AIR 1982 SC 1057.
19. In view of the said facts and law laid down by the Hon'ble Supreme Court, the date of birth of the prosecutrix cannot be said to have been conclusively established on the record and chances of the prosecutrix being of 18 or more than 18 years of age cannot be ruled SC No.133/10 Page 10/15 out. If there are two interpretations possible of a particular evidence on the record, the interpretation which is favourable to the accused must be adopted.
20. Defining the words "taking" and "enticing" the minor as is mentioned in Section 361 IPC, the Hon'ble Supreme Court, in case titled S. Varadarajan Vs. State of Madras reported as AIR 1965 SC page 942 held as follows:
"But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the SubRegistrar's Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of the marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have "taken" her out of the keeping of her lawful guardianship, that is the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.SC No.133/10 Page 11/15
There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. If evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking"."
21. Although I am conscious of the later judgment of the Hon'ble Supreme Court in Thakorlal D. Vadgama Vs. The State of Gujarat reported as AIR 1973 SC 2313, wherein the facts were different and the Hon'ble Supreme Court came to otherwise conclusion in the facts of the said case before it with regard to the meaning of the SC No.133/10 Page 12/15 words "taking" or "enticing" or "a minor leaving without any threat, promise or allurement on behalf of the accused" and distinguishing the Varadarajan's case (supra), it was held in said T.D. Vadgama's case (supra) as follows:
"It is obvious that the facts and the charge with which we are concerned in the present case are not identical with those in Varadarajan's case (supra). The evidenceof the constant behaviour of the appellant towards Mohini for several months preceding the incident on the 16th and 17th January 1967 completely brings the case within the passage at S. 248 of the decision cited. We have before us ample material showing earlier allurements and even of the, appellant's participation in the formation of Mohini's intention and resolve to leave her father's house."
22. Again, Hon'ble High Court of Delhi, in case titled Mehmood @ Mudia Vs. State reported as 1998 Crl. L.J. 2408 held that prosecutrix had categorically stated that accused had not committed any sexual intercourse with her and she was knowing him since long and was talking to him from 2 or 3 months and talk of their marriage was in progress and that she had not complained of her kidnapping by accused to anyone and had gone with accused voluntarily, the conviction of the accused u/s 366 IPC is hereby set aside.
23. Again, the Hon'ble Bombay High Court, in a judgment cited as Lawrence Kannandas Vs. State of Maharashtra reported as 1983 SC No.133/10 Page 13/15 Crl. L.J. 1819, held that in order to hold that accused "enticed" away the girl, it is necessary to have some evidence to the effect that accused had given her some temptation or promise or assurance or allurement which had the effect of an irresistible force upon the girl but when he had already taken a final decision to leave the house, the act of signalling on the part of the accused could not be said to be instrumental to her leaving her home.
24. In view of the said law laid down by the Hon'ble Superior Courts, in the present case the only allegation against the accused in the deposition of the prosecutrix is that on 05.07.2008, accused called her at Sector 18, Rohini but thereafter whatever the prosecutrix has done, was of her own accord and in her cross examination she has categorically admitted that she went with the accused without any threat, inducement or promise. Thus, the present case, so far as its facts are concerned, comes very near to the case of Varadarajan (supra) and that of before Hon'ble High Court of Delhi and Hon'ble Bombay High Court, as discussed above. It is in these circumstances, I am of the considered opinion that accused cannot be held liable for "taking" or "enticing" the said prosecutrix, who was sufficiently of matured understanding and the factum of marriage has already been denied by her. Thus, the accused is given the benefit of doubt for the offence u/s 366 IPC and he is acquitted SC No.133/10 Page 14/15 of both the charges i.e u/s 366/376 IPC. His PB and SB are hereby discharged. The file be consigned to the Record Room. (Announced in the open court on 31.05.2012) (RAKESH TEWARI) ASJ06(OUTER) ROHINI COURTS, DELHI SC No.133/10 Page 15/15